Can we fix our biased criminal courts?

(c) Think Progress

Picture the following scene. A young black man walks into a courtroom. He’s nervous, on edge. His head is down. He barely makes eye contact with anyone. His public defender does all the talking. He is watched carefully by a white male judge and an all-white 12-person jury.

The case proceeds. An expert from the city’s gang taskforce provides a report on the prevalence of gangs in the defendant’s neighborhood. A prosecution witness reports that the defendant can often be found “hanging out” with other young men, who aren’t related to him. There is some talk that some of these men have been found by police to have guns on them. The defense attorney does his best to provide an explanation of the circumstances and his client’s character, but doesn’t do a great job, perhaps because he’s thinking about all the other cases piling up on his desk. The case concludes. The jury retires to consider its verdict. They agree that young black gang members are a danger to the public and should be imprisoned. They find the defendant guilty. The defendant is locked away. And a new case begins.

Fans of ‘The Wire’ might assume that I’m merely recounting a story line from one of the program’s episodes. In a way, I am. But that’s because this show provides a pretty accurate picture of what goes on day in, day out in our criminal courts. Recently, I had the opportunity to interview Manohar Raju, Manager of the Felony Unit, at the San Francisco Public Defender’s Office. Much of what I have written here reflects that conversation. As the interview proceeded, I came to realize that our criminal courts provide a classic case study in cognitive bias. In the kind of behavioral traits that I have written about a lot on this blog. And understanding this bias is the key to reforming how our courts operate.

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Let’s start with the defendant. In a powerful article for Medium last year, Raju explained why the deck was stacked against his (disproportionately poor, black) clients. First, prosecutors apply excessive charges to defendants, in the hope that they will plead guilty to at least one to avoid multiple sentences. Second, bail is set so high as to incentivize defendants to plead guilty so they can be free rather than spend time in jail waiting for a trial. Third, defense attorneys and their clients are hesitant to go to trial because the jury will hear about their previous convictions, often obtained through the aforementioned excessive charging and high bail practices.

All of these factors play on the defendant’s aversion to loss. Loss aversion is an observed human behavior where we strongly prefer to avoid losses rather than acquire gains. Studies have estimated losses to be around twice as painful as gains.* So in the case of our defendants, they prefer to plead guilty to one certain charge rather than face multiple charges and either a chance that they will be found guilty and face a longer sentence or innocent and be freed. They prefer to be reunited with their families today even if that means taking a guilty plea rather than lose that time in jail waiting for a trial.

Defendants (and perhaps some defense attorneys?) also succumb to stereotype threat themselves. Believing that the world sees poor, black men as criminals, defendants act on this assumption. They plead guilty to avoid a trial that would expose them to stereotyping and, potentially, a harsher sentence.

What about the judge and members of the jury? Well, they enter the courtroom with a set of mental shortcuts known as heuristics. All human beings have these rules of thumb, which we use when we don’t have the complete picture but we have some past experience that might help us in the current situation. Things like “most strangers are friendly” or “most children are well-behaved”. We don’t know every person in the world but we know a sufficient number to assume that our rule of thumb is true. And most of the time, these heuristics work. We’d never introduce ourselves to a new person if they didn’t! But occasionally, heuristics can fail, causing us to make systematic mistakes. Rules of thumb like “most black people are criminals”. Or “most young poor men are in gangs”. They can lead to dangerous stereotyping.

Whether they are aware of these heuristics or not, the prosecutor can prime the jury to invoke some of these mental shortcuts. They can ask leading questions about whether the jury members are ready to uphold the law and peace in the community. They can frame the scene using keywords like guns to invoke a certain emotion within the jury. They can present the victim as entirely innocent or with a halo. The defendant by definition, is left wearing the horns, even if they were acting in self-defense (indeed, Raju explained to me that many young men carry guns to protect themselves when they step out into their risky neighborhood but pray before they leave the house that they don’t have to use their weapon, and pray when they return to their house, because they are so thankful that they didn’t have use their weapon).

Having done all of this, the prosecution doesn’t have to work very hard to present the case in a way that will secure a guilty verdict. Any evidence that they present will only serve to reinforce what the jury already believes to be true. Indeed, the defendant’s mannerisms — being on edge, looking down, barely speaking — provide confirmation enough. If they’re allowed to speak, they might be accused of being ‘ghetto’.**

The jury members have difficulty closing the empathy gap with the defendant because they appear to inhabit a completely different world, full of poverty and violence and drugs. Indeed, many of our cities are so segregated that blacks and whites do live in different worlds. Worse, the defendant is blamed for his or her actions, without regard of this world that they find themselves in. The actions are attributed to the person rather than the place (of course when a jury member gets tired and hungry, they attribute it to the length of the case, not their own health and willpower).

And at the end of all of this, a guilty verdict. Another life damaged. Families broken up. And potentially one more person locked up in a country that already has the highest incarcerated population in the developed world.

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Having read of this, you might think that there are just too many biases built into the criminal justice system for things to change. But that is exactly what Raju, and many other public defenders, are trying to do. The trick, he says, is to help the courts understand the defendant’s background and environment. Get the jury to put themselves in the defendant’s shoes. Help them close that empathy gap. Provide them with a new frame so that they are not so easily primed by the prosecution.

By crossing the social divide and breaking down stereotypes, defense attorneys have a better chance at presenting the case according to the facts, not assumptions. To do this effectively, attorneys need to spend time with their clients. Get to know their daily lives, what they enjoy doing, where they hang out, so that they can paint an accurate picture. This kind of effort takes time but Raju says that he has never found a situation where dedicating these hours hasn’t paid off.

Another way in which to temper bias is to improve diversity in the jury selection process. Having someone with a similar background to the defendant — be it race, income or neighborhood — might help jury members better understand that it is often the environment that the defendant finds themselves in that presents enormous challenges. Yes, the defendant has a choice but their judgment can be impaired, and their choices narrowed, simply as a result of living on a high-crime, low-income housing estate.

And it doesn’t just pay off in court. It impacts on the defendant as well. After all, this may be the first time in their lives that someone has stood up for them, and stood alongside them. And that can be the catalyst for changes to their life path.

All of this isn’t to say that public defenders are going to win every case. They are overwhelmed with work and, like other public departments, perennially short of funds. And overcoming bias is a struggle. But, in Raju’s words, it’s a “beautiful struggle”. As he says, “one thing is that when you do come in on the weekends, or you wake up at 5 in the morning to start work on a case, when you do have to spend less time with your family, you know who you’re doing it for, you’re doing it because you directly want to have a positive impact on someone’s life, it’s a very, very rewarding job even though it’s an uphill battle.”

Click below to listen to extracts of my interview with Manohar Raju, Manager of the Felony Unit, San Francisco Public Defender’s Office.

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* See, for example, Kahneman, D (2011), “Thinking, Fast and Slow

  • * In a must-read series of articles in the Guardian about the case of Tyra Patterson who claims that she was wrongfully convicted of being an accomplice to murder, she says that she wasn’t allowed to speak at her trial precisely because her attorney thought that she sounded too “ghetto” and would create the wrong impression with the jury.

A version of this article was first published on my blog in February